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Court orders planners to pay costs in 'mega basement' case

08 October 2015

A London borough council has been ordered to pay costs of £26,750 in a row over a basement development

The local authority was ordered to make the payment after they accepted that they had issued and prosecuted a defective Breach of Condition notice following alleged breaches of their Traffic Control Management Plan.

Defence lawyers, whose client was a well-respected construction company renowned for its high end basement developments, said the council had acted unlawfully and in a manner that was not cost effective to the tax payers of the borough.

Clive Newberry QC, a barrister with No5 Chambers, said: “It is extremely unusual to get almost £27,000 from a local authority, but I believe the awarding of costs reflects the seriousness of the potential impact of the case on my client’s reputation.”

The case revolved around one of London’s hot topics – luxury, so-called ‘mega basements’. Last year, planners granted permission for a two-storey basement development in one of the capital’s most popular districts, subject to a Construction Traffic Management Plan (CTMP) condition regulating the flow of construction traffic.

A complaint in May last year from a neighbour about traffic associated with work on the property subsequently led to planners warning the developer that legal action would be taken if they breached the CTMP and on July 16, 2014 the construction company was issued with a Breach of Condition Notice and a Stop Notice threatening prosecution for a criminal offence unless they complied with the CTMP.

With the help of solicitor Belinda Walkinshaw, a Property Litigation Partner at SA Law, No5 Chambers were instructed and the case went to Magistrates Court.

Mr Newberry said: “We looked at the breach of condition notice and found it to be defective. Not only was there a breach in the way the notice was prepared and issued, it also failed to specify what the company should do to rectify the situation.

“We were able to tell the court that the notice was defective, unlawful and should never have been issued.”

The court asked for a skeleton argument from both parties; the construction firm’s legal team complied, the council’s did not. When the two sides next appeared in court, the local authority had dropped its allegations and proceedings were discontinued – but the construction company had incurred considerable costs in defending the prosecution.

The defence said simply dropping the allegations was not good enough and successfully argued for the awarding of costs. As a result, the borough council was ordered to pay £27,500.

Belinda Walkinshaw said: “This was a significant victory. Not only did we win the case and secure our costs, we also protected the reputation of a well-respected company by preventing planners from taking them through the criminal court.”

And Mr Newberry issued a stark warning to other companies: “Who knows how many more of these defective notices might have been issued by this and other local authorities?

“Our advice to anybody finding themselves in similar situation would always be to get proper legal advice. Don’t sit back and do nothing – find a legal team who can make sure the notice is lawful.”

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